No. 20A55

IN THE SUPREME COURT OF THE UNITED STATES

MARCI ANDINO, in her official capacity as the Executive Director of the South Carolina Election Commission; JOHN WELLS, in his official capacity as the chairman of the South Carolina Election Commission; CLIFFORD J. EDLER and

SCOTT MOSELEY, in their official capacities as commissioners of the South Carolina Election Commission;

JAMES H. LUCAS, JR., in his official capacity as the Speaker of the South Carolina House of Representatives; HARVEY PEELER, in his official capacity as President of the South Carolina Senate; and SOUTH CAROLINA REPUBLICAN

PARTY, Applicants,

v. KYLON MIDDLETON, DEON TEDDER, AMOS WELLS,

CARLYLE DIXON, TONYA WINBUSH, ERNESTINE MOORE, the SOUTH CAROLINA DEMOCRATIC PARTY,

DNC SERVICES CORPORATION/DEMOCRATIC NATIONAL COMMITTEE, and DCCC,

Respondents.

To the Honorable John G. Roberts, Jr., Chief Justice of the United States and Circuit Justice for the Fourth Circuit

RESPONDENTS’ OPPOSITION TO EMERGENCY APPLICATION FOR STAY

Sopen Shah PERKINS COIE LLP 33 East Main Street Suite 201 Madison, WI 53703 (608) 663-7499

Marc E. Elias Counsel of Record Bruce V. Spiva Christopher J. Bryant PERKINS COIE LLP 700 13th Street, NW Suite 800 Washington, DC 20005 (202) 654-6200 MElias@perkinscoie.com

Counsel for Respondents

STATEMENT PURSUANT TO SUPREME COURT RULE 29.6

Per Supreme Court Rule 29.6, no Respondent has a parent company or a

publicly-held company with a 10 percent or greater ownership interest in it.

TABLE OF CONTENTS

i

TABLE OF AUTHORITIES ............................................................................ ii INTRODUCTION ............................................................................................. 1 STATEMENT OF THE CASE ........................................................................ 5 ARGUMENT ..................................................................................................... 7

I. The issue does not merit certiorari and the district court’s order is unlikely to be overturned on appeal. .......................................................................................... 7 a. This case does not raise a political question. ........... 8 b. Purcell compels no stay. .............................................. 10 c. The district court’s order was well supported

and not an abuse of discretion. ................................. 12 d. This case is distinguishable from the witness

signature cases Applicants cite. ................................ 16 II. Granting the stay would irreparably harm

Respondents. ............................................................................ 19 III. Applicants will not suffer irreparable harm if the

stay is denied. ........................................................................... 22 IV. The balance of the equities strongly favors denying

the stay. ...................................................................................... 25 CONCLUSION ................................................................................................ 27

TABLE OF AUTHORITIES (continued)

ii

CASES

Anderson v. Celebreeze, 460 U.S. 780 (1983) ............................................................................ 8, 14, 15

Benisek v. Lamone, 138 S. Ct. 1942 (2018) .................................................................................. 22

Burdick v. Takushi, 504 U.S. 428 (1992) ...................................................................................... 14

Clark v. Edwards, No. CV 20-283-SDD-RLB, 2020 WL 3415376 (M.D. La. June 22, 2020) ............................................................................. 18

Common Cause Rhode Island v. Gorbea, 970 F.3d 11 (1st Cir. 2020) .................................................................... 11, 12

Crawford v. Marion Cty. Elections Bd., 553 U.S. 181 (2008) .................................................................................... 8, 9

DCCC v. Ziriax, No. 20-CV-211-JED-JFJ, 2020 WL 5569576 (N.D. Okla. Sept. 17, 2020) .................................... 18, 19

Democracy N. Carolina v. N. Carolina State Bd. of Elections, No. 1:20CV457, 2020 WL 4484063 (M.D.N.C. Aug. 4, 2020) ............... 18, 19

Diretto v. Country Inn & Suites by Carlson, No. 16-cv-1037, 2016 WL 4400498 (E.D. Va. Aug. 18, 2016) ..................... 26

Duggins v. Lucas, 2020 WL 5651772 (S.C. Sept. 23, 2020) ...................................................... 26

Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002) .................................................................. 23, 26

Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966) ................................................................................ 15, 16

Hollingsworth v. Perry, 558 U.S. 183 (2010) ........................................................................................ 7

TABLE OF AUTHORITIES (continued)

iii

Holman v. Hilton, 542 F. Supp. 913 (D.N.J. 1982) .................................................................... 27

League of Women Voters of Va. v. Va. State Bd. of Elections, 2020 WL 2158249 (W.D. Va. May 5, 2020) ................................................. 13

Little v. Reclaim Idaho, 140 S. Ct. 2616 (2020) ............................................................................ 22, 23

Maryland v. King, 567 U.S. 1301 (2012) .................................................................................... 24

Merrill v. People First of Alabama, 2020 WL 3604049 (U.S. July 2, 2020) ............................................... 1, 13, 17

Newsom v. Albemarle Cty. School Bd., 354 F.3d (4th Cir. 2003) ............................................................................... 24

Nken v. Holder, 556 U.S. 418 (2009) ........................................................................................ 7

Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) .................................................................... 9, 27

Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013) ........................................................................ 26

People First of Alabama v. Merrill, No. 2:20-CV-00619-AKK, 2020 WL 5814455 (N.D. Ala. Sept. 30, 2020) ................................................................................................. 17, 18

Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008), overruled by Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012) ............................... 28

Purcell v. Gonzalez, 549 U.S. 1 (2006) .................................................................................. passim

Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020) (per curiam) ............................................................. 26

S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) .............................................................................. 9, 13

TABLE OF AUTHORITIES (continued)

iv

Swanson v. Worley, 490 F.3d 894 (11th Cir. 2007) ........................................................................ 9

Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020) .................................................................. 10, 27

Thakker v. Doll, No. 1:20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020).................... 21

Thompson v. Dewine, 959 F.3d 804 (6th Cir. 2020) .................................................................. 22, 27

Winston–Salem/Forsyth Cty Bd. of Educ. v. Scott, 404 U.S. 1221 (1971) ...................................................................................... 7

STATUTES & ENACTED LEGISLATION

S.C. Code Ann. § 7-15-380 ................................................................................... 5

R. 149 § 2, 2020 S.C. Acts No. ___ .............................................................. 10, 11

OTHER AUTHORITIES

Judge reinstates SC witness signature requirement for absentee ballots, WLTX (Sep. 24, 2020 5:16 PM) ................................. 11

1

INTRODUCTION

At issue is a constitutional challenge to a single provision of South

Carolina law: the requirement that voters have a witness sign their absentee

ballot return envelope (the “Witness Requirement”). Respondents presented

overwhelming and unrefuted evidence that, as applied during the pandemic,

the Witness Requirement increases the risk of COVID-19 infection and

transmission and unconstitutionally burdens the right to vote. The district

court’s thorough, thoughtful order granting the injunction was not an abuse of

discretion and should not be stayed. To do so at this point, moreover, when

thousands of South Carolina voters have returned ballots since the district

court’s order was entered and when a similar injunction was in place in the

statewide primary held earlier this year, would risk substantial voter

confusion that would itself threaten the right to vote of lawful South Carolina

voters. The application to stay should be denied.

There are several features of this case that make it particularly unique,

each of which weighs strongly against issuing the stay requested by the

Applicants. First, Applicant Marci Andino, the Executive Director of the South

Carolina Election Commission (“SCEC”), “has repeatedly recommended

against the witness requirement as being not only ineffective to deter fraud,

but a barrier to lawful voting.” Appendix to Emergency Application for Stay

(“App.”) 85 (emphasis added). She is on record stating that the Witness

Requirement “offers no benefit to election officials as they have no ability to

2

verify the witness signature.” App. 60 n.36. As a result, it does not serve the

state interest in election security and integrity.

Second, as noted above, the district court enjoined the Witness

Requirement for the June primary and runoff elections. The defendants did

not appeal that decision, and no one presented any evidence that the

suspension of the Requirement impacted the integrity of the primary or the

runoff election, despite the fact that the use of absentee voting was higher in

the primary than it had been in any previous South Carolina election.

Third, because the injunction was in place during the last two South

Carolina elections, in which many voters cast their ballots absentee for the first

time, many voters likely now reasonably believe that a ballot will not be

rejected simply because the ballot envelope does not include a witness

signature.1 Thus, denying the stay would maintain the status quo and protect

against voter disenfranchisement due to confusion over the late-breaking

change.

Before the June primary and runoff elections, only a select group of

individuals were permitted to vote absentee. But in June, all South Carolina

voters were permitted to vote absentee, and they did so without the Witness

Requirement. All South Carolina voters are again permitted to vote absentee

in the November election, and the overwhelming number of those eligible

1 Although the ballot envelopes sent to voters contain a place for a witness signature, the district court ordered the SCEC to notify voters that ballots without a witness signature would count during both the June and November elections.

3

voters have only known an absentee voting system without the Witness

Requirement. Indeed, over 150,000 absentee ballots for the November election

have been mailed to voters while the Witness Requirement has been enjoined.

According to SCEC records, thousands of those ballots have already been

returned.

Applicants’ motion, moreover, rests on several mischaracterizations of

the district court’s decision and the extensive record that supported it. For

example, Applicants fault the district court for providing inadequate weight to

the state’s asserted law enforcement interests. Mot. at 19. But the district court

carefully considered those interests, and found that, in the present context,

they could not outweigh the burden that enforcing the Witness Requirement

in the November election would impose on thousands of South Carolinians’

voting rights. The district court also considered and properly rejected

Applicants’ argument that absentee voting restrictions do not impact the

fundamental right to vote. The district court’s decision, moreover, was not

lightly taken. It was well-considered and amply supported. The district court

became intimately familiar with the issue over several months, considering it

first on a preliminary injunction motion for the primary, and then again with

the benefit of the record from that election, on a second motion in advance of

the general election (which culminated in the order now at issue).

Applicants largely ignore this record and their arguments that this

Court should issue a stay are meritless. If that stay granted, moreover, it will

4

likely cause no harm to Applicants but is certain to cause irreparable harm to

Respondents and thousands of lawful South Carolina voters, particularly

African American voters, whose communities have been hit disproportionately

hard by COVID-19. Although African Americans make up only 27% of the

State’s population, they represent 35.3% of its deaths due to the virus. App. 11.

They are also far more likely to live alone. App. 21. In addition, even voters

who are COVID-19 positive are not exempted from the Witness Requirement.

The Requirement would thus force voters to choose between participating in

the democratic process and taking critical steps to safeguard their health and

the health of their communities.

South Carolina’s voters have already begun casting their absentee

ballots while the Witness Requirement has been enjoined. Any voter who, to

date, has returned their absentee ballot without a witness signature has done

so lawfully. Thousands more are likely to cast their ballot before any news of a

stay reaches them (if it ever does). South Carolina lacks a cure procedure to

notify absentee voters of any fixable defect in their absentee ballot, so many of

these voters face certain disenfranchisement through no fault of their own.

The district court’s 71-page order was issued after extensive

consideration of hundreds of pages of briefing, an ample evidentiary record,

and hours of argument, and the court properly exercised her discretion to grant

the injunction. Because Applicants cannot establish any of the prerequisites

for securing a stay, the Court should reject the application.

5

STATEMENT OF THE CASE

South Carolina requires that a voter must have another person witness

and sign their absentee ballot envelope for the vote to count (the “Witness

Requirement”). S.C. Code Ann. § 7-15-380. Plaintiffs are political party

committees and individual voters, whose right to vote (and, for the committees,

the rights of their members and constituencies) will be unduly burdened by the

application of this requirement during the present pandemic. The district court

enjoined the Witness Requirement twice; first for the June primary (and the

subsequent runoff) and then for the November election in an order issued on

September 18. Applicants moved for an emergency stay of the district court’s

second preliminary injunction in the Fourth Circuit. On September 24, a panel

voted 2-1 to stay the district court injunction. The very next day, the full Fourth

Circuit vacated the panel’s stay and granted rehearing en banc. App. 75.

The Fourth Circuit denied the Applicants’ stay motion 9-5 on September

30. App. 82. Judge King, concurring in the denial of a stay, “emphasize[d] that

. . . the district court has preserved the status quo in South Carolina . . . of not

having a witness requirement during the COVID-19 pandemic.” App. 83. “[T]o

stay the injunction so close to the election would engender mass voter confusion

and other problems that the Supreme Court warned against in Purcell v.

Gonzalez, 549 U.S. 1, 4-5 (2006).” App. 83. The dissent, Judge King noted,

“refuse[d] to acknowledge that the district court has preserved the electoral

status quo in South Carolina for the November general election.” App. 87. And

6

the risk “[t]hat voters in the November general election would be blindsided by

the witness requirement is all the more probable because, since the Spring, the

spread of COVID-19 has worsened in South Carolina.” App. 84. Judge Wynn,

also concurring in the decision, emphasized that denial of the stay “helps South

Carolinians of all political persuasions exercise their constitutionally

guaranteed right to vote.” App. 88.

Since the district court issued its order and the en banc Fourth Circuit

denied the Applicants’ motion to stay, the interests that weigh in favor of

leaving the injunction in place have only gotten stronger. South Carolinians

have requested hundreds of thousands of absentee ballots, thousands of which

have already been returned to elections officials by voters, with many more

undoubtedly also on their way back to county election offices. Among the voters

who have not yet cast their ballots and sent them back, many are unlikely to

get the message that the Witness Requirement, which was not involved in

recent elections nor during the first weeks of absentee voting for the November

election, is now suddenly in force. Denying Applicants’ motion for a stay will

protect voters from being disenfranchised based on confusion about whether

they need to get a witness. And, as the district court properly found based on

the expansive evidentiary record presented to it, it will do so without risking

injury—much less irreparable injury—to the State or any other interested

7

parties. For all of these reasons, Applicants’ motion for a stay should be

denied.2

ARGUMENT

To prevail, Applicants bear a heavy burden, which they repeatedly fail

to carry. See Winston–Salem/Forsyth Cty Bd. of Educ. v. Scott, 404 U.S. 1221,

1231 (1971). “A stay is an ‘intrusion into the ordinary processes of

administration and judicial review,’” and granting a stay pending appeal is

“extraordinary relief.” Nken v. Holder, 556 U.S. 418, 427 (2009); id. at 433–34.

Applicants must show “(1) a reasonable probability that four Justices will

consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect

that a majority of the Court will vote to reverse the judgment below; and (3) a

likelihood that irreparable harm will result from the denial of a stay.”

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). “In close cases the Circuit

Justice or the Court will balance the equities and weigh the relative harms to

the applicant and to the respondent.” Id. Applicants fail to make any of the

requisite showings to justify a stay.

I. The issue does not merit certiorari and the district court’s order is unlikely to be overturned on appeal.

This case—and the district court’s order—lacks novelty or general

applicability that would warrant a grant of certiorari. The subject of

Applicants’ requested stay is a straightforward constitutional challenge.

2 Although Respondents challenged several provisions of South Carolina law, the Witness Requirement is the only one before this Court.

8

COVID-19 did not convert this constitutional challenge into a political

question, the district court’s order does not implicate avoidance principles

established to limit voter confusion, and the Witness Requirement is

distinguishable from other signature-related cases in which courts have come

to different conclusions. The district court weighed the evidence and applied

the well-known and often used Anderson-Burdick framework. The result was

a thoughtful and well-supported order that properly enjoined the challenged

law.

a. This case does not raise a political question.

The question before the district court was whether the Witness

Requirement unconstitutionally burdens the right to vote in violation of the

U.S. Constitution; that is not a political question or a policy judgment. The

Anderson-Burdick test provides a clear, judicially manageable standard for

adjudication, which federal courts regularly apply to similar claims. Under this

highly factual test, courts weigh the burden on the right to vote against “the

precise interests put forward by the State as justifications for the burden

imposed by its rule.” Anderson v. Celebreeze, 460 U.S. 780, 789 (1983). The

standard of review is dictated by the weight of the burden, but “[h]owever

slight the burden may appear . . . it must be justified by relevant and legitimate

state interests sufficiently weighty to justify the limitations.” Crawford v.

Marion Cty. Elections Bd., 553 U.S. 181, 190–91 (2008) (plurality op.). The

Court has been clear: this is no litmus test; in every case, federal courts must

9

balance these factors and make hard judgments. Id. Finally,

“Anderson/Burdick balancing . . . should not be divorced from reality, and []

both the burden” on voters and the interest put forth by the state “should be

evaluated in context.” Obama for Am. v. Husted, 697 F.3d 423, 441 (6th Cir.

2012) (White, J., concurring); see also Swanson v. Worley, 490 F.3d 894, 909

(11th Cir. 2007). In other words, the district court applied a well-accepted legal

test to Respondents’ claims; it did not replace the legislature’s “policy

preferences” with its own, as Applicants incorrectly suggest.

None of the cases Applicants cite hold otherwise. In South Bay United

Pentecostal Church v. Newsom, Chief Justice Roberts opined in a concurrence

to a one-sentence order of the Court that denied an application for injunctive

relief by a church that sought to be excluded from the California Governor’s

COVID-19-related Executive Order, that the restrictions at issue “appear[ed]

to be consistent with” the Constitution, 140 S. Ct. 1613, 1613 (2020), and “[t]he

precise question of when restrictions on particular social activities should be

lifted during the pandemic is a dynamic and fact-intensive matter subject to

reasonable disagreement.” Id. (emphasis added). There is no suggestion that

the application of election laws that make it more difficult for voters to exercise

their right to vote—or require them to risk their health to exercise that right—

during the pandemic involve nonjusticiable political questions. Every decision

that is made by the State during COVID-19 is not automatically shielded from

constitutional review. “The standards for resolving such claims are familiar

10

and manageable, and federal courts routinely entertain suits to vindicate

voting rights.” Texas Democratic Party v. Abbott, 961 F.3d 389, 398 (5th Cir.

2020).

b. Purcell compels no stay.

Applicants’ heavy reliance on Purcell v. Gonzalez and the doctrine it has

engendered is misplaced. There, the Supreme Court cautioned that “[c]ourt

orders affecting elections . . . can themselves result in voter confusion and

consequent incentive to remain away from the polls,” a risk that increases “[a]s

an election draws closer.” Purcell, 549 U.S. at 4–5. The purpose underlying

Purcell is to avoid changing the electoral status quo just before an election,

which would cause voter confusion and chaos.

In this case, the “electoral status quo” is no Witness Requirement. The

Requirement was enjoined in the June primary and runoff elections, which

were the last statewide elections in which South Carolina voters participated.

Moreover, those elections were the first time that the overwhelming majority

of South Carolina voters were eligible to vote absentee due to the General

Assembly’s temporary expansion of individuals who are able to vote absentee

in order to ensure voter safety in the COVID-19 pandemic. All South Carolina

voters are again eligible to vote absentee for the November election, R. 149 § 2,

2020 S.C. Acts No. ___, and the absence of a Witness Requirement is the only

absentee voting system they have known. Granting the stay would, therefore,

change the status quo. Thus, Purcell counsels against issuing Applicants’

11

requested stay, not in favor of it. Accord Common Cause Rhode Island v.

Gorbea, 970 F.3d 11, 16 (1st Cir. 2020) (holding Purcell did not apply because

a witness requirement was not enforced in recent election and “the status quo

(indeed the only experience) for most recent voters is that no witnesses are

required”).

As Applicants note, more than 150,000 absentee ballots have been sent

to voters since the district court enjoined the Witness Requirement. Mot. at 3.

Applicants imply that the Fourth Circuit’s en banc vacation of the divided

panel’s stay created confusion because “ballots had already gone out.” Mot. at

1–2. But Applicants conveniently omit the fact that over 40,000 absentee

ballots had already been sent to voters when the divided Fourth Circuit panel

voted 2-1 to issue a stay of the district court’s order. Judge reinstates SC

witness signature requirement for absentee ballots, WLTX (Sep. 24, 2020 5:16

PM), available at https://bit.ly/34jiqmu. That stay remained in place only for

one day before the Fourth Circuit issued an en banc order vacating it.

SCEC’s records indicate that thousands of voters have already returned

their ballots for the November election. To change the rules now would risk

widespread confusion and threaten lawful voters with total

disenfranchisement. Unlike many other states, South Carolina lacks a cure

procedure to notify absentee voters that their ballots fail to comply with a

technical requirement and provide them with an opportunity to cure the defect.

Thus, if the Court were to issue the stay and the State were to treat a missing

12

witness signature as a defect, it is much more likely to cause significant voter

confusion and disenfranchisement than leaving the preliminary injunction

order in place. The same is true of the Court’s concern in Purcell that last-

minute changes to elections procedures may create a “consequent incentive to

remain away from the polls.” 549 U.S. at 5. Granting the stay would cause

more ballots to be rejected; not facilitate voter access to the franchise. For all

of these reasons, the Court should reject Applicants’ arguments that Purcell

justifies a stay.

c. The district court’s order was well supported and not an abuse of discretion.

The district court properly applied the Anderson-Burdick framework,

and the court’s conclusion that Plaintiffs were likely to succeed on their

challenge to the Witness Requirement was not an abuse of discretion.

Applicants’ arguments to the contrary are without merit.

In considering the nature of the burden imposed, the district court relied

on overwhelming unrebutted evidence that the imposition of the Witness

Requirement in the coming election would burden voters, both by making it

more difficult for them to vote and forcing them to choose to risk their health

in the present pandemic or forego their most fundamental right. App. 56. The

district court found that these burdens could not be justified when weighed

against the State’s sole justification for applying the Witness Requirement in

the pandemic—that is, to investigate alleged voter fraud. App. 58–59. The

district court relied upon unrebutted data regarding the spread of COVID-19,

13

its harmful effects in addition to death, and its disproportionate impact on

certain communities, as well as unrebutted expert conclusions. App. 53–56.

And its conclusion was consistent with that of other district courts in finding

that witness signature requirements in the time of COVID-19 is a substantial

burden. App. 57 (citing Common Cause R.I., 970 F.3d at 14–15; League of

Women Voters of Va. v. Va. State Bd. of Elections, 2020 WL 2158249, at *8

(W.D. Va. May 5, 2020)).

Applicants assert that the district court made several errors in

identifying this burden, but none rise to the level of clear error sufficient to

overturn a finding of fact or legal error. First, contrary to Applicants’ assertion

that the district court relied on the wrong cases, there are no binding cases

here. As discussed above, Merrill is procedurally distinct; absentee voting has

begun, and the status quo for the majority of eligible voters is no Witness

Requirement. And although Applicants lean heavily on Chief Justice Roberts’s

concurrence in the order in South Bay United Pentecostal Church, it does not

stand for the proposition that federal courts must abdicate their authority and

obligation to preside over challenges to the application of election laws during

a pandemic.

Second, Applicants’ citationless assertion that the Witness Requirement

imposes “only reasonable, nondiscrimatory burdens on absentee voting,” Mot.

at 17, misapprehends the Anderson-Burdick framework. The Court is required

to identify the burden—which Applicants appear to acknowledge exists—and

14

then weigh that burden against the precise interests articulated by the State.

Anderson, 460 U.S. at 789; Burdick v. Takushi, 504 U.S. 428, 434 (1992). This

is precisely what the district court did.

Third, the fact that Respondents Kylon Middleton and Deon Tedder,

two candidates for elected office, desire to assist voters with their ballots is of

no moment in analyzing the burden the Witness Requirement imposes on the

right to vote. Their declarations regarding their willingness to assist other

with returning their absentee ballots related to their standing to challenge a

ban on the collection of absentee ballots by candidates—a challenge that the

district court rejected below and is not at issue here. App. 66–69. Moreover,

the challenges of these two laws are not inherently contradictory. Some

individuals, like Respondents Middleton and Tedder, may be willing to

voluntarily assume some risk of transmission or infection to help others

participate in the franchise. They can do so in an interaction-free manner. The

Witness Requirement, by contrast, forces voters—including those voters who

have COVID-19—to risk transmission or infection, and also requires in many

instances the back-and-forth exchange of documents and a pen.

Fourth, the fact that an individual can locate a witness does not mean

that the Witness Requirement does not constitute a burden. Respondents do

not—and need not—allege impossibility. Anderson, 460 U.S. at 791 n.12

(explaining that the ability of a few individuals to qualify as independent

presidential candidates “d[id] not negate the burden imposed” by the

15

challenged regulation); see also Harper v. Va. State Bd. of Elections, 383 U.S.

663, 670 (1966) (striking down poll tax as unconstitutional regardless of voter

ability to pay).

Courts are required to weigh the burden against the precise interests

identified by the state, not some constellation of possible interests or interests

identified by state defendants in other cases. In the district court, Applicants

identified only one state interest: they claimed that the Witness Requirement

served an “important-law enforcement regulatory function.” App. 58. Although

Applicants reference additional state interests in their application for a stay,

including deterring voter fraud, increasing confidence in the integrity of the

electoral process, and promoting transparency and accountability in the

electoral process, Mot. at 18, these interests were not presented to the district

court in support of Applicants’ opposition to the second motion for preliminary

injunction. This is underscored by two facts. First, in making this argument in

their motion to stay, Applicants notably rely on other cases instead of the

arguments and evidence presented below to even identify the interests.

Second, the district court noted that Applicants “shifted their argument”

between the first and second motions for preliminary injunction to assert that

the Witness Requirement “serves an important law-enforcement investigatory

function” after “admit[ing] the Witness Requirement was ineffective to prevent

absentee ballot fraud.” App. 58; id. n.35 (emphasis added).

16

The district court analyzed the strength of evidence supporting the

State’s interest in investigating allegations of voter fraud (a nonspecific

declaration from a law enforcement officer identifying the witness signature as

providing a “significant” lead in fraud investigations) and juxtaposed it with

the fact that the state elections director, an Applicant here, lauded the

injunction of the Witness Requirement for the June primary and runoff

elections, acknowledged that it formed a barrier to casting an absentee ballot,

and recommended that it be suspended again for the general. App. 60; id. n.36.

Andino is charged with ensuring fair and impartial administration of elections,

the State’s purported interest in the Witness Requirement, so the district court

properly credited her previous statement that the Witness Requirement “offers

no benefit to election officials as they have no ability to verify the witness

signature.” App. 61. And again, no one presented any evidence that the absence

of the Witness Requirement during the June primary and runoff elections

worked any mischief.

Against this record, the district court’s conclusion that Plaintiffs were

likely to succeed on their Anderson-Burdick claim was not an abuse of

discretion.

d. This case is distinguishable from the witness signature cases Applicants cite.

Applicants cite several cases involving absentee ballot witness

signatures to support their request for an injunction. Mot. at 13 (collecting

cases). Each is readily distinguishable.

17

Applicants first assert that the Supreme Court’s grant of a stay in

Merrill v. People First of Alabama, 2020 WL 3604049 (U.S. July 2, 2020),

supports a stay in this case, claiming that the two cases are “virtually

identical.” Mot. at 2. There are, however, several key differences.

In Merrill, the plaintiffs sought to enjoin, for the first time, a witness

requirement for a runoff election, and the injunction was entered before voting

in that election began. Here, as discussed above, the absence of the Witness

Requirement is the status quo for most South Carolina voters because it was

enjoined for the June primary and runoff elections, which were the first

elections in which most South Carolina voters could vote absentee. In addition,

mail-in absentee voting is already in full swing in South Carolina. The

reasoning applied in granting that stay is inapplicable here, and the district

court ultimately enjoined the witness requirement for the November election.

People First of Alabama v. Merrill, No. 2:20-CV-00619-AKK, 2020 WL

5814455, at *51 (N.D. Ala. Sept. 30, 2020) (holding witness signature

requirement unconstitutional “during the COVID-19 pandemic”); id. at *75

(holding plaintiffs were entitled to an order “enjoining the enforcement of the

witness requirement” and doing so by separate order).

Applicants next highlight several lower court cases involving absentee

ballot witness signatures to highlight the fact that some courts have either

issued stays of witness requirement injunctions or declined to order witness

requirement injunctions. Mot. at 13. Each of these cases are likewise

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distinguishable. In Democratic National Committee v. Bostelmann, the court

granted a motion to stay a witness requirement where the Wisconsin Election

Commission took affirmative steps to provide voters with “at least five concrete

alternative suggestions for how voters can comply with the state’s witness and

signature requirements in light of the extraordinary challenges presented by

the COVID-19 crisis.” 2020 WL 3619499 at *2 (7th Cir. Apr. 3, 2020). Here, by

contrast, SCEC’s Executive Director has twice recommended eliminating the

Witness Requirement for voter safety because of COVID-19. App. 60, id. n.36.

Finally, Applicants cite two district court cases where the courts reached

the merits and declined to enter injunctions against witness requirements.

Mot. at 13 (citing DCCC v. Ziriax, No. 20-CV-211-JED-JFJ, 2020 WL 5569576

(N.D. Okla. Sept. 17, 2020); Democracy N. Carolina v. N. Carolina State Bd. of

Elections, No. 1:20CV457, 2020 WL 4484063 (M.D.N.C. Aug. 4, 2020)). These

cases are inapposite because each case presented a factually distinct scenario

for the district court to analyze in the Anderson-Burdick framework. 3

In Democracy North Carolina, the district court emphasized that its

analysis and ultimate decision not to enjoin the witness requirement turned

on “the specific facts presented.” 2020 WL 4484063, at *25. It thoroughly

reviewed the evidence and made factual findings regarding the burden on

voters from COVID-19 and the witness requirement, id. at *25–34, and

3 Applicants also identify a third case, Clark v. Edwards, No. CV 20-283-SDD-RLB, 2020 WL 3415376 (M.D. La. June 22, 2020) as “denying preliminary injunction,” but the district court did not ultimately consider the plaintiffs’ motion for a preliminary injunction in Clark because it dismissed the case on jurisdictional grounds. Id. at *15.

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considered “all of the evidence submitted” in determining the weight of the

North Carolina’s interest in maintaining the witness signature, id. at *34–36.

In Democracy North Carolina, the state asserted that the witness requirement

played a role in absentee ballot verification. In this case, by contrast,

Applicants admit and acknowledge that the Witness Requirement plays no role

in absentee ballot verification.

In DCCC v. Ziriax, the district court was also faced with a different

factual scenario in weighing the State’s interest. There, “[t]he defendants

argue[d] that notary or witness signatures help protect vulnerable voters by

ensuring a known neutral observer prevented coercion of the absentee voter.”

2020 WL 5569576, at *12. Here, Applicants made no such “protect vulnerable

voters” argument.4

In sum, the procedural posture and facts of this case are unlike those in

any witness signature case heard or likely to be heard by a federal court in

2020. A stay risks widespread disenfranchisement, and the district court

properly considered the evidence and applied it to the Anderson-Burdick

framework.

II. Granting the stay would irreparably harm Respondents.

As in the primary and runoff elections, the district court’s order ensures

that Respondents and their members and constituents are not deterred from

4 Respondents do not concede that this would be a valid reason to require a witness requirement during the COVID-19 pandemic, they simply note that Applicants have not identified this as a government interest to weigh against the burden imposed by the Witness Requirement.

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voting due to reasonable concerns about the threat that in-person interactions

pose to their health in the present pandemic. The record was undisputed that

this threat to Respondents and thousands of South Carolina voters’ health is

concrete, real, and imminent. In fact, as the district court and Judge King

noted, “[s]trikingly, the Witness Requirement would still apply to voters who

have already contracted COVID-19, therefore affirmatively mandating that an

infected individual go ‘find’ someone to witness their absentee ballot and risk

exposing the witness (and whoever comes in contact with the witness) to the

virus.” App. 65, 84.

The risk of harm if a stay is issued is particularly acute for South

Carolina’s African American population, who have been contracting and dying

of COVID-19 at disparately high numbers, as well as other voters among South

Carolina’s most vulnerable populations, including the elderly and those with

preexisting conditions that make them dangerously susceptible to the worst

possible outcomes from the virus. App. 84 (King, J., concurring). The reality is

that, unless the injunction remains in place, the Witness Requirement will

either cause voters to take unnecessary risks to their health or forego voting

entirely constitutes textbook irreparable harm. And voters who believe, either

based on their experience in the primary or even their neighbor’s experience in

this election that their ballot will be accepted even if they are unable to find a

witness to sign it, will similarly be disenfranchised. Once the election is over

(or the voter contracts or spreads the virus), there can be no adequate remedy

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at law. See App. 62-63 (citing cases); see also Thakker v. Doll, No. 1:20-cv-480,

2020 WL 1671563, at *4 (M.D. Pa. Mar. 31, 2020).

In addition, because the district court previously enjoined the

Requirement in the primary, the injunction protects the current status quo:

throughout the pandemic, South Carolinians have not been required to satisfy

the Witness Requirement. Issuing the stay would alter the present elections

framework with which voters who participated in the primary are presently

familiar (not the other way around). App. 83, 88 (King, J., and Wynn, J., both

concurring).

Finally, a stay would undisputedly disenfranchise South Carolina

voters. Thousands have already returned their ballots, many of whom likely

reasonably believed that they did not need to obtain a witness. Nowhere in

their petition do Applicants explain what they will do with the ballots that

have come in without a witness signature, including those that were sent while

the Witness Requirement was enjoined.

Applicants do not dispute that staying the district court’s order would

disenfranchise some South Carolinians, including those who have already sent

in their ballots. Nor do they argue that catching COVID-19 is not irreparable

harm. Rather, Applicants argue that the Witness Requirement will not

“substantially injure any parties” because it is “likely constitutional.” Mot. at

26. As the district court (twice) and the en banc Fourth Circuit determined, the

Witness Requirement is likely unconstitutional. And even “likely

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constitutional” laws can inflict irreparable harm. See Thompson v. Dewine, 959

F.3d 804, 812 (6th Cir. 2020).

Applicants also argue that “any harm to Respondents” is their fault for

“unnecessarily” “delay[ing]” their “pursuit of relief” since the Witness

Requirement was passed in 1953. Mot. at 27 (citing Little v. Reclaim Idaho,

140 S. Ct. 2616, 2617 (2020) (Roberts, C.J., concurring)). But this ignores the

historical moment in which we find ourselves in which gave rise to this

litigation months ago. Respondents’ challenge to the Witness Requirement is

based on the COVID-19 pandemic, which first became an evident issue in this

country in early to mid-March of 2020. Respondents filed this action as quickly

as they possibly could, in light of emerging issues and evidence. See Benisek v.

Lamone, 138 S. Ct. 1942, 1944 (2018) (“reasonable diligence”). Respondents

obtained an injunction in the primary, which Applicants chose not to appeal.

There is thus no legitimate comparison to the facts in the Reclaim Idaho case,

where the plaintiffs did not pursue relief from Idaho’s signature requirements

to get initiatives on the ballot until “more than a month after the deadline for

submitting signatures.” Reclaim Idaho, 140 S. Ct. at 2617 (C.J., Roberts,

concurring).

III. Applicants will not suffer irreparable harm if the stay is denied. Applicants, on the other hand, make no showing that they will suffer

injury absent a stay, much less irreparable harm. App. 64 (“[T]here is no

evidence that Defendants will suffer any harm if Plaintiffs’ Motion is

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granted.”); see also App. 86 (King, J., concurring). The State is not “harmed by

issuance of a preliminary injunction which prevents the state from enforcing

restrictions likely to be found unconstitutional. If anything, the system is

improved by such an injunction.” App. 64 (quoting Giovani Carandola, Ltd. v.

Bason, 303 F.3d 507, 521 (4th Cir. 2002) and citing Newsom v. Albemarle Cty.

School Bd., 354 F.3d at 261 (4th Cir. 2003)).

This Court has never granted a stay simply because a district court’s

order prevented a state from “effectuating statutes enacted by representatives

of its people.” Mot. at 24 (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012)

(Roberts, C.J., in chambers). The Applicants’ quoted language comes from a

case considering whether to stay an injunction that prevented Maryland from

collecting DNA from people arrested for “violent felonies.” Maryland, 567 U.S.

at 1303 (Roberts, C.J., in chambers). That practice had resulted in 58 criminal

prosecutions in the two prior years, giving rise to an “ongoing and concrete

harm to Maryland’s law enforcement and public safety interests,” id. at 2–3

(emphasis added), not simply its interest in “effectuating statutes enacted by

representatives of its people.” No such interest is present here.

Applicants’ baseless assertion that a stay is necessary to avoid “voter

confusion, distrust in election results, and skepticism of the democratic

process” is also easily rejected. Mot. at 24–25. There is no evidence that there

was any voter confusion, distrust in election results, or skepticism of the

democratic process in South Carolina’s June primary and June runoff elections

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as a result of the injunction of the Witness Requirement in those elections. In

fact, after that election Applicant Andino, SCEC’s Executive Director, again

affirmatively recommended that the Witness Requirement be suspended for

the November election as well. App. 60 & n.36. Applicants have no proof that

the Witness Requirement is “an important means of deterring fraud and

protecting the integrity of elections.” Applicants’ single example of fraud from

2008 had nothing to do with the Witness Requirement. Mot. at 19. And

although it is true that a law enforcement officer testified that the Witness

Requirement theoretically offers a potential lead in voter fraud cases, he could

not cite an example in which the Witness Requirement actually proved useful

in prosecuting voter fraud. Middleton ECF 93-8 at 2. Whatever minor

deterrent, if any, getting a witness signature may entail to those who would

seek to fraudulently participate in the voting process (and Applicants have

shown no proof of deterrence) is well outweighed, as the district court and

Fourth Circuit found, by the disenfranchisement and burden on the right to

vote that imposing it in South Carolina’s November election will cause in the

context of the current circumstances. App. 58, App. 85 (King, J., concurring).

Applicants’ efforts to distinguish their application from the one that this

Court recently rejected in Republican National Committee v. Common Cause

Rhode Island fall flat. 2020 WL 4680151, at *1 (U.S. Aug. 13, 2020). Just as in

Rhode Island, “voters may well” believe “[t]he status quo” still lacks a witness

requirement. 2020 WL 4680151, at *1. During the most recent elections in

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June, voters were not required to obtain a witness signature. And, again,

Applicants conveniently ignore that Applicant Andino, the head of South

Carolina’s elections agency and a member of the executive branch,

recommended that the Witness Requirement be eliminated for the November

election. Finally, the South Carolina Supreme Court’s dismissal of Duggins v.

Lucas, 2020 WL 5651772 (S.C. Sept. 23, 2020), means nothing here since the

court was not asked to decide whether the Witness Requirement violated the

U.S. Constitution. Duggins petitioners broadly accused the General Assembly

of failing to meet its state constitutional duties by not acting to address voting

during the COVID-19 pandemic. When the General Assembly extended the

option to vote absentee to everyone, the court dismissed the suit.

As discussed supra Part I.b, Purcell supports Respondents’ position.

South Carolinians have voted without the Witness Requirement for more than

four months. This Court should avoid “late-breaking judicial interference with

state elections,” Mot. at 27. See Republican Nat'l Comm. v. Democratic Nat'l

Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam).

IV. The balance of the equities strongly favors denying the stay.

This factor, as well, strongly weighs against granting Applicants’ motion

for a stay. That the equities favor the district court’s injunction is clear for

multiple reasons, including that (1) the injunction prevented constitutional

violations, see App. 63–64 (citing Giovani Carandola, 303 F.3d at 521

(“upholding constitutional rights surely serves the public interest”)); (2) it

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serves the public interest in safeguarding public health, see App. 64 (citing

Pashby v. Delia, 709 F.3d 307, 331 (4th Cir. 2013); Diretto v. Country Inn &

Suites by Carlson, No. 16-cv-1037, 2016 WL 4400498, at *4 (E.D. Va. Aug. 18,

2016) (“The public interest is clearly in remedying dangerous or unhealthy

situations and preventing the further spread of disease.”)); and (3) “the public

interest ‘favors permitting as many qualified voters to vote as possible.’” App.

65 (quoting Obama for Am., 697 F.3d at 437). And now, as the Fourth Circuit

concluded, denying a stay (4) “will minimize confusion among both voters and

trained election officials—a goal patently within the public interest.” Texas

Democratic Party, 961 F.3d at 412.

Applicants do not dispute that preventing the spread of COVID-19 is in

the public interest. Nor do they dispute that maximizing the number of

qualified voters who can vote serves the public interest. Rather, Applicants

argue that the public interest favors a stay because “the witness requirement

is likely constitutional” and the public interest “lies in ‘giving effect to the will

of the people by enforcing the [election] laws they and their representatives

enact.’” Mot. at 27. The Witness Requirement is likely unconstitutional, as both

the district court and en banc Fourth Circuit found. Even if a majority of South

Carolina’s electorate favored keeping the Requirement in place (and there is

no evidence whatsoever that that is true), “the Constitution [ ] confers certain

specific rights upon individuals which the courts will protect with greater

authority against the will of the majority.” Holman v. Hilton, 542 F. Supp. 913,

27

921 (D.N.J. 1982); see Thompson, 959 F.3d at 813 (“the Constitution provides

a backstop, as it must”). The public interest in enforcing the law for the law’s

sake is outweighed by preventing the spread of COVID-19, maximizing the

number of qualified voters who can vote, and⸺perhaps most

importantly⸺preventing confusion and chaos on the eve of the election. The

situation here is in stark contrast to Respect Maine PAC v. McKee and Phelps-

Roper v. City of Manchester, Missouri, where plaintiffs’ public-interest showing

rested entirely on their claims that the law violated their First Amendment

rights. Respect Maine, 622 F.3d 13, 15 (1st Cir. 2010); Phelps-Roper v. Nixon,

545 F.3d 685, 690 (8th Cir. 2008), overruled by Phelps-Roper v. City of

Manchester, Mo., 697 F.3d 678 (8th Cir. 2012).

CONCLUSION

For all the above reasons, Respondents respectfully ask this Court to

deny Applicants’ emergency application for a stay of the preliminary injunction

pending disposition of their appeal in the Fourth Circuit and any petition for a

writ of certiorari.

Dated: October 3, 2020 Respectfully submitted,

s/Marc E. Elias Marc E. Elias Bruce V. Spiva Christopher J. Bryant PERKINS COIE LLP 700 13th Street, NW, Suite 800

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Washington, DC 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 MElias@perkinscoie.com BSpiva@perkinscoie.com CBryant@perkinscoie.com Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 366-7460 Facsimile: (608) 663-7499 SShah@perkinscoie.com